UC Management Makes a Mess of Academic Freedom and Some Other Stuff as well.

This week's election, combined with the success of faculty led lawsuits against the Trump Administration's efforts to subordinate higher education, gives the lie to the idea that compliance is the only option facing university management and faculty.  

These events call into question what appears to be the strategy of the Regents and Office of the President:  keep your head down, don't make waves, and obey in advance.  The choice of UCOP not to pursue lawsuits against the Trump administration's efforts while fighting to block the release of the proposed UCLA settlement has always seemed dubious.  Now it seems incredibly short sighted.  The sudden cancellation of the President's Postdoctoral Fellowship Program suggests that neither President Milliken nor Provost Newman have learned anything from recent events.

I mention this background because we're getting to the end of the systemwide review of proposed changes to faculty discipline and the establishment of a policy on expressive activities.  Comments to the Academic Senate need to be submitted by November 10 and to the Regents by November 26th.  If you have not been following this effort to change the Academic Personnel Manual (015 and 016) there are several very strong general analyses that you can find here, here, and here.  I urge everyone to read them if you haven't.  I want to make a few points in this post.

The proposed changes to faculty discipline combine two issues (structuring discipline for expressive activities and speeding up the disciplinary process) that have no logical connection.  Each proposal also offers solutions that exceed what was required by the problem. Importantly, they not only continue the centralization of power at UC but drag the Academic Senate into that centralization.  Finally, the "Disciplinary Sanction Guidelines for Misconduct Related to Expressive Activity" powerfully misrepresents the relationship between academic freedom and faculty discipline while also offering a somewhat sloppy reference to First Amendment jurisprudence.  Taken together they offer a normalization of the increasingly extreme policing of thought and expression that we have witness at UC over the past few years.  Let me try to explain.

A. The official impetus for the creation of the new policy on expressive activity was Section 219 (34) of the California Budget Act of 2024 (SB108).  That section required that "Each campus of the university shall prepare a campus climate notification by the beginning of the Fall 2024 term. The University of California Office of the President will develop a systemwide framework to provide for consistency with campus implementation and enforcement."  Section 34 does indicate that this implementation includes making clear the "consequences" for violating "relevant institutional policies, state law, or federal law, including, but not limited to, discrimination based on shared ancestry under Title VI of the Civil Rights Act of 1964"; however, those consequences were already laid out in APM 015 and 016.  The University might have simply reminded everyone of those and reported that to the Legislature.  But they did not follow that path.  Instead, they seized the opportunity to model judgments on expressive activity in parallel to the procedures for discipline under SVSH (Sexual Violence and Sexual Harassment).

B.  What makes this decision even more dangerous is the way in which the proposed policies borrow from SVSH and characterize academic freedom and First Amendment law.  In Attachment A (at pg. 47) one "mitigating" factor is "Engaging in activity tied to a reasonable teaching or research purpose/Engaging in activity inside the broadest interpretation of academic freedom."  But activity within the "broadest interpretation of academic freedom" is not simply a mitigating factor:  it precludes discipline.  Academic Freedom is a threshold.  If an activity falls within it then it is protected.  If it falls outside of it then discipline becomes a question depending on a whole range of considerations.  Tellingly, I think, the proposal provides little consideration of the implications of APM 010 which guarantees full academic freedom in addition to constitutional rights of free expression to members of the faculty. Academic freedom is not a "mitigating" factor.  Just to underline the point, the SVSH policy is actually more definitive on the threshold nature of academic freedom.  If actually implemented it would be hard to see this treatment as anything but an opening towards the lessening of academic freedom at the university.

The proposal's gloss on the First Amendment is slightly better but still inadequate.  As the General Counsel's Attachment B (at pg. 51) puts it: "Faculty, like all University employees, are also entitled to First Amendment protection for speech on matters of public concern, but only insofar as the employee’s expressive interests outweigh the University’s interests in fulfilling its public service mission."  This is, I suppose, a narrowly correct representation of what is commonly understood known as the "Pickering" test, a the key balancing question in public employee speech law.  But it is worth noting that this balance is not something that can simply be decided by management.  It is a test that will be applied in the case of judicial intervention.  Therefore, while it is legitimate to take it as a guiding principle within the university,  it cannot be used as a unilateral management tool.  As with so much of this policy, one gets the sense that management is trying to put its finger on the scale before any case has appeared.

C.  Finally, I want to offer a brief discussion of the proposed new "Systemwide Network Committee on Privilege and Tenure."  Here the proposal suggests that when Divisional P&T committees cannot constitute a hearing committee within 14 business days (because of overall limits on the time that hearing decisions can take) that the Systemwide Network Committee would step in and establish their own hearing committee.  There has, to be sure, been long standing concern on the part of the Regents about delays in disciplinary decisions (remember they tend to only see the ones that reach dismissal of tenured faculty), but it is difficulty to believe that this effort (started in January 2025) was not provoked by the complaints that some regents had over the lack of discipline surrounding the Gaza protest encampments.  Hence the political, although not logical, intersection with expressive activities.

But there are some problems here.  First, to my knowledge there has never been any convincing evidence that delays in discipline take place on the Senate side of the process.  Instead, in my experience, delays have been on the administrative side as they give themselves extensions.  But even more problematic is the fact that the solution exceeds the problem.  If the problem truly is that divisional committees are not able to fill the rosters for hearings, then the logical solution would be to create a network committee whose members could supplement the numbers of divisional members, not replace them entirely.  In that case, we would still have a committee with local knowledge with the benefit of a different perspective.  What UCOP proposes instead is a replacement process where local faculty are potentially reduced to "consultants."  

Put another way, this proposal continues the long-term trend towards UC centralization that began under President Yudof.  Now, however, it is infecting the Senate as well.  It is difficulty to think of examples of how this process of centralization has benefited the university (UC Path, anyone?) nor that UCOP can claim to be particularly responsive to viewpoints from campuses (Trellix, anyone?).  It's distressing that the Senate itself might be sidelining its local committees.

Of course none of this is a good sign at a moment when the Regents and UCOP are in negotiations with the Trump administration.  UC management faces a series of choices that will help define whether UC will remain an important public university.  Their track record doesn't inspire confidence.  In fact, the only effective counter voice has been the faculty in alliance with unionized workers.  It is crucial that faculty keep using their voices to explain and defend academic freedom and the conditions of teaching and learning.  

Let both the Senate and the Regents know what you think.